Aquinas returns to the question of slavery in another pa.s.sage, which is interesting as showing that he continued to make use of the a.n.a.logy between slavery and property which we have seen in the Fathers. 'A thing is said to belong to the natural law in two ways. First, because nature inclines thereto, _e.g._ that one should not do harm to another. Secondly, because nature did not bring in the contrary; thus we might say that for man to be naked is of the natural law because nature did not give him clothes, but art invented them. In this sense the possession of all things in common and universal freedom is said to be of the natural law, because, to wit, the distinction of possession and slavery were not brought in by nature, but devised by human reason for the benefit of human life. Accordingly, the law of nature was not changed in this respect, but by addition.'[1]

[Footnote 1: I. ii. 94, 5, ad. 3.]

aegidius Roma.n.u.s closely follows the teaching of his master on the subject of slavery. 'What does aegidius do? He unites Aristotle and St.

Augustine against human liberty. He declares with the latter that man has lost the right of belonging to himself, since he has fallen from the primitive order established by G.o.d Himself in nature. He admits with Aristotle the existence of two races of men, the one designed for liberty, the other for servitude.... This is not all--to this servitude which he calls natural, the author joins another, purely legal, but which does not seem to him less just, namely, that which is founded on the right of war, and which obliges the conquered to become the slaves of the conquerors--to give up their liberty in exchange for their lives. Our author admits it is just in itself, because in his opinion it is useful to the defence of one's country; it excites warriors to courage by placing before their eyes the terrible consequences of cowardice.'[1] The teachings of St. Thomas and aegidius were accepted by all the later scholastics.[2] Biel, whose opinion is always very valuable as being that of the last of a long line, says that there are three kinds of slaves--slaves of G.o.d, of sin, and of man. The first kind of slavery is wholly good, the second wholly bad, while the third, though not inst.i.tuted by, is approved by the _jus gentium_. He proceeds to state the four ways in which a man may become enslaved: namely, _ex necessitate_, or by being born of a slave mother; _ex bello_, by being captured in war; _ex delicto_, or by sentence of the law in the case of certain crimes committed by freedmen; and _ex propria voluntate_, or by the sale of a man of himself into slavery.[3]

[Footnote 1: Franck, _op. cit._, p. 90.]

[Footnote 2: Franck, _op. cit._, p. 91.]

[Footnote 3: Biel, _Inventarium seu Repertorium generale super qualuor libros Sententiarum_, iv. xv. I; and see Carletus, _Summa Angelica_, q. ccxii.]

It must not be forgotten that we are dealing purely with theory.

In fact the Church did an inestimable amount of good to the servile cla.s.ses, and, at the time that Aquinas wrote, thanks to the operation of Christianity in this respect, the old Roman slavery had completely disappeared. The nearest approach to ancient slavery in the Middle Ages was serfdom, which was simply a step in the transition from slavery to free labour.[1] Moreover, the rights of the master over the slave were strictly confined to the disposal of his services; the ancient absolute right over his body had completely disappeared. 'In those things,' says St. Thomas, 'which appertain to the disposition of human acts and things, the subject is bound to obey his superior according to the reason of the superiority; thus a soldier must obey his officer in those things which appertain to war; a slave his master in those things which appertain to the carrying out of his servile works.'[2] 'Slavery does not abolish the natural equality of man,'

says a writer who is quoted by the _Catholic Encyclopaedia_ as correctly stating the Catholic doctrine on the subject prior to the eighteenth century, 'hence by slavery one man is understood to become subject to the dominion of another to the extent that the master has a perfect right to the services which one man may justly perform for another.'[3] Biel, who lays down the justice of slavery so unambiguously, is no less clear in his statement of the limitations of the right. 'The body of the slave is not simply in the power of the master as the body of an ox is; nor can the master kill or mutilate the slave, nor abuse him contrary to the law of G.o.d. The temporal gains derived from the labour of the slave belong to the master; but the master is bound to provide the slave with the necessaries of life.'[4] Rambaud very properly points out that the reason that the scholastic writers did not fulminate in as strong and as frequent language against the tyranny of masters, was not that they felt less strongly on the subject, but that the abuses of the ancient slave system had almost entirely disappeared under the influence of Christian teaching.[5]

[Footnote 1: Wallon, _op. cit._, vol. iii. p. 93; Brants, _op. cit._, p. 87.]

[Footnote 2: II. ii. 104, 5.]

[Footnote 3: Gerdil., _Comp. Inst. Civ. I._, vii.]

[Footnote 4: Biel, _op. cit._, iv. xv. 5.]

[Footnote 5: _Op. cit._, p. 83.]

On the other hand, it must not be imagined, as has sometimes been suggested, that the slavery defended by Aquinas was not real slavery, but rather the ordinary modern relation between employer and employed.

Such an interpretation is definitely disproved by a pa.s.sage of the article on justice where Aquinas says that 'inducing a slave to leave his master is properly an injury against the person ... and, since the slave is his master's chattel, it is referred to theft.'[1]

[Footnote 1: II. ii. 61,3. Brants, _op. cit._, pp. 87 _et seq_., is inclined to take a more liberal view of the scholastic doctrine on slavery, but we cannot agree with him in view of the contemporary texts.]

CHAPTER III

DUTIES REGARDING THE EXCHANGE OF PROPERTY

SECTION 1.--THE SALE OF GOODS

-- 1. _The Just Price_.

We dealt in the last chapter with the duties which attached to property in respect of its acquisition and use, and we now pa.s.s to the duties which attached to it in respect of its exchange. As we indicated above, the right to exchange one's goods for the goods or the money of another person was, according to the scholastics, one of the necessary corollaries of the right of private property. In order that such exchange might be justifiable, it must be conducted on a.

basis of commutative justice, which, as we have seen, consisted in the observance of equality according to the arithmetical mean. We further drew attention to the fact that exchanges might be divided into sales of goods and sales of the use of money. In the former case the regulating principle of the equality of justice was given effect to by the observance of the _just price_; in the latter by that of the _prohibition of usury_. We shall deal with the former in the present and with the latter in the following section.

The mediaeval teaching on the just price, about which there has been so much discussion and disagreement among modern writers, was simply the application to the particular contract of sale of the principles which regulated contracts in general. Exchange originally took the form of barter; but, as it was found impossible accurately to measure the values of the objects exchanged without the intervention of some common measure of value, money was invented to serve as such a measure. We need not further refer to barter in this section, as the principles which applied to it were those that applied to sale. Indeed all sales when a.n.a.lysed are really barter through the medium of money. That Aquinas simply regarded his article on just price[1] as an explanation of the application of his general teaching on justice to the particular case of the contract of sale is quite clear from the article itself. 'Apart from fraud, we may speak of buying and selling in two ways. First, as considered in themselves; and from this point of view buying and selling seem to be established for the common advantage of both parties, one of whom requires that which belongs to the other, and _vice versa_. Now whatever is established for the common advantage should not be more of a burden to one part than to the other, and consequently all contracts between them should observe equality of thing and thing. Again, the quality of a thing that comes into human use is measured by the price given for it, for which purpose money was invented. Therefore, if either the price exceed the quant.i.ty of the thing's worth, or conversely the worth of the thing exceed the price, there is no longer the equality of justice; and consequently to sell a thing for more than its worth, or to buy it for less than its worth, is in itself unjust and unlawful.'[2] When two contracting parties make an exchange through the medium of money, the price is the expression of the exchange value in money. 'The just price expresses the equivalence, which is the foundation of contractual justice.'[3]

[Footnote 1: II. ii. 77, 1.]

[Footnote 2: This opinion was accepted by all the later writers, _e.g._ Gerson, _De Cont._, ii. 5; Biel, _op. cit._, IV. xv. 10: 'Si pretium excedit quant.i.tatem valoris rei, vel e converso tolleretur equalitas, erit contractus iniquus.']

[Footnote 3: Desbuquois, 'La Justice dans l'Echange,' _Semaine Sociale de France_, 1911, p. 167. Gerson says: 'Contractus species est just.i.tiae commutativae quae respicit aequalitatem rei quae venditur ad rem quae emitur, ut servetur aequalitas justi pretii; propter quam aequalitatem facilius observandum inventa est moneta, vel numisma, vel pecunia,' _De Cont._, ii. 5.]

The conception of the just price, though based on Aristotelian conceptions of justice, is essentially Christian. The Roman law had allowed the utmost freedom of contract in sales; apart from fraud, the two contracting parties were at complete liberty to fix a price at their own risk; and selfishness was a.s.sumed and allowed to be the animating motive of every contracting party. The one limitation to this sweeping rule was in favour of the seller. By a rescript of Diocletian and Maximian it was enacted that, if a thing were sold for less than half its value, the seller could recover the property, unless the buyer chose to make up the price to the full amount.

Although this rescript was perfectly general in its terms, some authors contended that it applied only to sales of land, because the example given was the sale of a farm.[1] However, the rescript was quoted by the Fathers as showing that even the Roman law considered that contracts might be questioned on equitable grounds in certain cases.[2] The distinctively Christian notion of just price seems to have its origin in a pa.s.sage of St. Augustine;[3] but the notion was not placed on a philosophical foundation until the thirteenth century.

Even Aquinas, however, although he treats of the just price at some length, and expresses clear and categorical opinions upon many points connected with it, does not state the principles on which the just price itself should be arrived at. This omission is due, not to the fact that Aquinas was unfamiliar with these principles, but to the fact that he took them for granted as they were not disputed or doubted.[4] We have consequently to look for enlightenment upon this point in writings other than those of Aquinas. The subject can be most satisfactorily understood if we divide its treatment into two parts: first, a consideration of what const.i.tuted the just price in the sale of an article, the price of which was fixed by law; and second, a consideration of what const.i.tuted the just price of an article, the price of which was not so fixed.

[Footnote 1: Hunter, _Roman Law_, p. 492.]

[Footnote 2: Ashley, _op. cit._, p. 133.]

[Footnote 3: 'Scio ipse hominem quum venalis codex ei fuisset oblatus, pretiique ejus ignarum ideo quiddam exiguum poscentem cerneret venditorem, justum pretium, quod multo amplius erat nec opinanti dedisse' (_De Trin._, xiii. 3).]

[Footnote 4: Palgrave, _Dictionary of Political Economy_, t.i.t. 'Justum Pretium.']

-- 2. _The Just Price when Price fixed by Law_.

Regarding the power of the State to fix prices, the theologians and jurists were in complete agreement. According to Gerson: 'The law may justly fix the price of things which are sold, both movable and immovable, in the nature of rents and not in the nature of rents, and feudal and non-feudal, below which price the seller must not give, or above which the buyer must not demand, however they may desire to do so. As therefore the price is a kind of measure of the equality to be observed in contracts, and as it is sometimes difficult to find that measure with exact.i.tude, on account of the varied and corrupt desires of man, it becomes expedient that the medium should be fixed according to the judgment of some wise man.... In the civil state, however, n.o.body is to be decreed wiser than the lawgiving authority. Therefore it behoves the latter, whenever it is possible to do so, to fix the just price, which may not be exceeded by private consent, and which must be enforced.'...[1] Biel practically paraphrases this pa.s.sage of Gerson, and contends that it is the duty of the prince to fix prices, mainly on account of the difficulty which private contractors find in doing so.[2]

[Footnote 1: _De Cont._, i. 19.]

[Footnote 2: _Op. cit._, IV. xv. 11.]

The rules which we find laid down for the guidance of the prince in fixing prices are very interesting, as they show that the mediaeval writers had a clear idea of the const.i.tuent elements of value.

Langenstein, whose famous work on contracts was considered of high authority by later writers, says that the prince should take account of the condition of the place for which the price was to be fixed, the circ.u.mstances of the time, the condition of the ma.s.s of the people.

The different kinds of need which may be felt for goods must also be considered, _indigentice naturae_, _status_, _voluptatis_, and _cupiditatis_; and a distinction drawn between extensive and intensive need--the former is greater 'quanto plures re aliqua indigent,' the latter 'quanto minus de illa re habetur.' The general rule is that the prince must seek to find a medium between a price so low as to render labourers, artisans, and merchants unable to maintain themselves suitably, and one so high as to disable the poor from obtaining the necessaries of life. When in doubt, Langenstein concludes, the price should err on the low rather than the high side.[1] Biel gives similar rules: The legislator must regard the needs of man, the abundance or scarcity of things, the difficulty, labour, and risks of production.

When all these things are carefully considered the legislator is in a position to fix a just price.[2] According to Endemann, the labour of production, the cost and risk of transport, and the condition of the markets had all to be kept in mind when a fair price was being fixed.[3] We may mention in pa.s.sing that the power of fixing the just price might be delegated; prices were frequently fixed by the town authorities, the guilds, and the Church.[4]

[Footnote 1: Roscher, _Geschichte_, p. 19.]

[Footnote 2: _Op. cit._, IV. xv. 10.]

[Footnote 3: _Studien_, vol. ii. p. 43.]

[Footnote 4: Endemann, _Studien_, vol. i. p. 40; Roscher, _Political Economy_, s. 114.]

The pa.s.sage from Gerson which we quoted above shows that, when a just price had been fixed by the competent authority, the parties to a contract were bound to keep to it. In other words, the _pretium legitimum_ was _ipso facto_ the _justum pretium_. On this point there is complete agreement among the writers of the period. Caepolla says, 'When the price is fixed by law or statute, that is the just price, and n.o.body can receive anything, however small, in excess of it, because the law must be observed';[1] and Biel, 'When a price has been fixed, the contracting parties have sufficient certainty about the equality of value and the justice of the price.'[2] Cossa draws attention to the necessity of the fixed price corresponding with the real price in order that it should maintain its validity. 'The schoolmen talk of the legitimate and irreducible price of a thing which was fixed by authority, and was for obvious reasons of special importance in the case of the necessaries of life.... The legitimate price of a thing as fixed by authority had to be based upon the natural price, and therefore lost its validity and became a dead letter the moment any change of circ.u.mstances made it unfair.'[3]

[Footnote 1: _De Contractibus Simulatis_, 69.]

[Footnote 2: _Op. cit._, IV. xv. 10.]

[Footnote 3: _Op. cit._, p. 143.]